project
II. Legal Framework
3. Evaluating Directive
2.2 Limitations to the benefit of libraries, archives and museums
Limitations adopted for the benefit of libraries are thus meant to allow these institutions to perform their general tasks and to encourage the dissemination of knowledge and information among members of
15 Martin Senftleben, Copyright, Limitations and the Three-Step-Test (The Hague: Kluwer Law International, 2004).
society at large, in furtherance of the common good. Article 5(2)c) of the Information Society Directive allows Member States to adopt a limitation on the reproduction right in respect of specific acts of reproduction made by publicly accessible libraries, archives, educational establishments or museums which are not for direct or indirect economic or commercial advantage. As the Explanatory Memorandum to the Directive specifies, the provision does not define those acts of reproduction which may be exempted by Member States. Moreover, this provision must be read in conjunction with Recital 40 of the Directive, which makes it clear that the European lawmaker intended to restrict the application of this limitation to certain special cases covered by the reproduction right, and not to allow uses made in the context of online delivery of protected works or other subject-matter. Regarding acts of electronic delivery, libraries are encouraged to negotiate specific contractual arrangements with rights holders. The making of digital reproductions of works in a library’s collection for purposes of preservation, however, falls clearly within the ambit of this provision, since it makes no distinction between reproductions made in analogue or digital format.16
Not all Member States have implemented this optional limitation, and those that did have often chosen different ways to do it, subjecting the act of reproduction to different conditions of application and requirements.
Some Member States only allow reproductions to be made in analogue format; others restrict the digitisation to certain types of works, while yet other Member States allow all categories of works to be reproduced in both analogue and digital form.17 In addition, Member States have identified different beneficiaries of this limitation. Some have simply replicated the wording of article 5(2)b), while others have limited its application to public libraries and archives to the exclusion of educational institutions.
The prevailing legal uncertainty regarding the manner in which digitised material may be used and reproduced, is likely to constitute a disincentive to digitisation. This militates against cross-border exchange of material, and may discourage cross-border cooperation.18 However, as already mentioned in the Staff Working Paper of 2004, libraries face another problem
16 Krikke, p. 156.
17 Urs Gasser and Silke Ernst, “EUCD Best Practice Guide: Implementing the EU Copyright Directive in the Digital Age”, University of St. Gallen Law & Economics Working Paper No. 2007-01 (December 2006), p. 16.
18 See European Commission, “i2010: Digital Libraries”, SEC (2005) 1194, Brussels (30 September 2005), p. 9.
by the fact that pursuant to article 1(2) of the Directive, which leaves the provisions of earlier directives unaffected, the limitation of article 5(2)c) of the Information Society Directive does not apply to databases.19 This may create severe practical obstacles for the daily operations of libraries.
With respect to the making available of the digital archives, article 5(3)n) of the Directive states that Member States may adopt limitations on the reproduction and the communication to the public rights for “use by communication or making available, for the purpose of research or private study, to individual members of the public by dedicated terminals on the premises of establishments referred to in paragraph 2(c) of works and other subject-matter not subject to purchase or licensing terms which are contained in their collections”. Not only is the implementation of this provision, just like the previous one, not mandatory, but even where it has been implemented, its scope remains extremely narrow: a work may only be communicated or made available to individual members of the public if each patron establishes that the use is for his exclusive research or private study. The works may only be communicated or made available by means of dedicated terminals on the premises of non-commercial establishments, which excludes any access via an extranet or other protected network connection that users can access at a distance. Moreover, this provision only finds application insofar as no purchase or licensing terms provide otherwise, which is in practice rarely the case. As the following remark illustrates, this provision was met with much scepticism within the library community:
While this is a laudable regulation, it is incomprehensible that this exception is tied to “dedicated terminals on the premises” of named establishments and to the condition that these works are not subject to purchase or licensing terms. (…) The second condition is another example of the lack of balance in the Infosoc Directive. By allowing rights holders to contractually evade any exception, it grants them unlimited exclusive rights in the online realm.
This condition prevents public libraries from fulfilling their public task of making published works available to their users without prejudice to their ability to pay their market price.20
In countries that chose to implement it, article 5(3)n) was transposed almost word-for-word in the national legislation. Several Member States have, however, decided not to incorporate this article into their law; the
19 Commission Staff Working Paper on the Review of the EC legal Framework in the Field of Copyright and Related Rights, SEC (2004) 995, Brussels, 19 July 2004, p. 13.
20 Privatkopie.net & Aktionsbuendnis Urheberrecht & FIfF, Response to Consultation on Staff Working Paper 2004, p. 8.
extent to which library patrons are allowed, in these Member States, to consult digital material on the library network is therefore unclear.
However, considering the default nature of this provision and the fact that its application is most often overridden by contract, libraries advocate for specific contracts or licenses which, without creating an imbalance, would take account of their specific role in the dissemination of knowledge.
3. TechnologicalProtectionMeasuresinDirective
2001/29/EC
The emergence of the digital network environment as a commercially viable platform for the distribution of copyright protected content sparked, in the early 1990s, the need on the part of rights holders to increase legal protection in order to safeguard content from unauthorised access and use. At the international level, the call for the recognition of legal protection for TPMs became particularly vibrant during the last phase of the negotiations leading to the adoption of the WIPO Internet Treaties in December 1996.21 Indeed, in the preamble to the WIPO Copyright Treaties (WCT), the Contracting Parties said to recognise “the need to introduce new international rules (…) in order to provide adequate solutions to the questions raised by new economic, social, cultural and technological developments”. This Treaty, together with the WIPO Performers and Phonograms Treaty (WPPT), introduced a new form of protection to the benefit of rights holders by establishing, for the first time in an international copyright instrument, that technological measures used by authors and related right holders to protect their works or related subject matter enjoy independent protection.22